Illinois Cent. R. Co. v. Stewart

• Decision Date: 12 June 1901
• Citation: 63 S.W. 596
• Parties: ILLINOIS CENT. R. CO. v. STEWART. [1]
• Court: Kentucky Court of Appeals

63 S.W. 596

ILLINOIS CENT. R. CO. v. STEWART. ^[1]

Court of Appeals of Kentucky.

June 12, 1901

Appeal from circuit court, McCracken county.

"To be officially reported."

Action by Fred Stewart against the Illinois Central Railroad Company to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed.

In an action to recover for injuries sustained by a switchman evidence as to a bruise on plaintiff's back which sloughed out, and other proof as to his treatment, are admissible to show the extent of his suffering.

Birtle & Trabue, Quigley & Quigley, and J. M. Dickerson, for appellant.

John K Hendrick, W. S. Bishop, John G. Miller, and Hazelrigg &amp Chenault, for appellee.

HOBSON J.

Fred Stewart filed this suit to recover for personal injuries received by him on June 7, 1898, while in the employ of appellant as a switchman in its yards at Paducah, Ky. The facts of the case, according to the testimony introduced by him, are as follows: Stewart and another switchman, named Hamilton, were assisting in switching some cars in the yard. For this purpose they brought the engine down to a switch, intending to run it in on the side track. Stewart went to the switch lever to throw the switch. Before he got the switch thrown, the engineer, without waiting for a signal from him, came ahead with the engine, which struck the switch rail, and threw it back to its original position. This knocked the lever out of Stewart's hand. There was a ball on the end of the lever, weighing 12 or 15 pounds, and this ball, in the fall of the lever, struck the big toe of his left foot, and mashed it. The engine was then backed, Stewart threw the switch, and the engine then came ahead. He got on the running board at the front of the engine, which was a switch engine, and furnished with a running board instead of a pilot. Hamilton was also on the running board. When they got within 15 or 20 feet of the car after which they were going, Stewart said to Hamilton, "I mashed my toe, and it is making me sick." The engine was moving very slowly. Hamilton stepped off at one side, and went up to the car, and set the pin. He then turned round to signal the engineer he was ready, and as he looked in the direction of the engine he saw Stewart, who had fainted in the meantime, in the act of falling off the running board in front of the slowly-moving engine. He gave the engineer a signal to stop, but the engine was not stopped until it had cut off Stewart's left leg. At this point Stewart came to himself, and heard Hamilton call to the engineer as the engine began to back, "Stop her! Stewart is under the engine." The engineer, however, continued to back. The engine caught Stewart, and twisted him around so as to throw his right leg over the rail, and as it backed off of him the engine cut this leg off also. Stewart was not aware that his toe was so badly hurt when he got on the engine, and there was no reason to anticipate his fainting and falling off as he did. The proof for the appellant tended to show that there was no negligence on the part of the engineer at the switch; that the engine did not come forward, and then go back, and then come forward again, but came straight ahead, and there was no trouble there. The engineer testified that he could not see Stewart on the running board from his position on the engine, and that he did not know that he had fallen off, or was in any danger, until he got the signal from Hamilton to stop, and that Hamilton immediately gave him a signal to back; that he obeyed the signal, and did not know Stewart had fallen off, or was hurt, until he saw him on the track after the engine backed off him. The testimony of Hamilton is substantially the same as that of the engineer. There was no motion for a peremptory instruction at the conclusion of the plaintiff's testimony, but there was such a motion at the close of all the evidence. The case has been tried three times. On the first trial one of the jurors was taken sick, and the jury were discharged. On the next trial there was a verdict in favor of Stewart for $10,000. This the court set aside, and on the last trial there was a verdict in his favor for $15,000, which the court refused to set aside.

It is earnestly maintained for appellant that a peremptory instruction should have been given the jury to find for it, and that, in any view of the case, the verdict is palpably against the evidence. It was the duty of the engineer at the switch to wait for a signal to come forward, and if, without waiting for such signal, he ran upon the switch before it was thrown, and thereby injured Stewart, who was in the act of throwing the switch, and, according to his evidence, was the proper person to give the signal, the company would be liable. Stewart's toe was mashed, and the loss of blood from this injury caused him to faint a few moments later. All the circumstances sustain Stewart's version of this part of the transaction. It is insisted for him that the engineer could see him on the running board, and should have known of his fall, and stopped the engine before it ran over him, as it was going slowly, and could have been stopped in a few inches; but, under all the circumstances, we do not think this conclusion can be maintained. Still, when Stewart was under the engine, and it had come to a stop, the engineer should not have backed his engine without knowing where Stewart was, and without a signal from Hamilton to do so; especially not after Hamilton urged him to stop, and told him Stewart was under the engine. It is true that both Hamilton and the engineer testified on the trial that Stewart's version of the transaction was untrue, and that Hamilton signaled the engineer to go back immediately after giving the stop signal. But the statements of the engineer out of court to Stewart, which were proven in rebuttal to contradict his testimony, sustain Stewart, and so does the deposition which Hamilton gave not long after the suit was brought. We conclude, therefore, in view of all the circumstances and the contradiction of Hamilton and the engineer on other material matters in their testimony, that the verdict of the jury is not palpably against the evidence.

The court permitted the plaintiff to prove that the engine by which he was hurt was not a regular switch engine, and was not in good condition; that the wheels of this engine were only a few inches from the front, and in a switch engine they were much further back; also that Morgan, the engineer, was not a competent engineer. There was nothing in the case to warrant the conclusion that the injury of Stewart was due to any defect in the engine, or incompetency on the part of Morgan to manage and control it. But the court at the conclusion of the case gave the jury the following instruction: "There is no evidence in this case conducing to prove that any of the wrongs and injuries complained of by the plaintiff were occasioned by reason of any unfitness of defendant's tracks or engine used on the occasions named in the plaintiff's petition, or that the injuries were caused by any incompetency of the engineer, Morgan. And the court further says to the jury that no recovery can be had in this action unless you shall believe from the evidence the said wrongs and injuries complained of were occasioned by the gross negligence of the said engineer, Morgan, in the running, handling, or managing of defendant's said engine on the occasion of said injury." We must assume that the jury obeyed the instruction so clearly and positively given. The evidence as to the bruise on Stewart's back which sloughed out, and the other proof as to his treatment, were competent to show the extent of his suffering. The proof of the bruise on his back was also competent in corroboration of his testimony that the engine, in backing, caught him in the back, and rolled him around.

This brings us to a consideration of the instructions of the court to the jury, which are as follows: (1) "The court instructs the jury that gross negligence is the failure to take such care as a person of common sense and...